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Lord Mackay of Ardbrecknish: When it comes to benefits in general, if we are at fault and we overpay then the recovery does not usually trigger in. I suspect that the same situation would occur in this case. Indeed, I am right to make that transposition from what I know to be the situation as regards benefits in general to this particular case where one is recovering a benefit
overpayment almost at second hand. If we make a mistake, we--as we do in the benefit system--just live with it.
Baroness Hollis of Heigham: I thank the Minister for that response. If there are other loose threads on this issue I do not doubt that we shall return to them at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Compensation payments to be disregarded]:
Lord Mackay of Ardbrecknish moved Amendments Nos. 44 and 45:
The noble Lord said: I have already spoken to these two amendments. I beg to move them en bloc.
On Question, amendments agreed to.
Clause 21, as amended, agreed to.
Clause 23 [Power to amend Schedule 2]:
Baroness Hollis of Heigham moved Amendment No. 46:
The noble Baroness said: This amendment also visits the issues in Schedule 2 on which we touched earlier; namely, the heads of compensation and the lists of benefits which may be deducted for them. As they stand, we have no problem. They are obviously sensible.
We are worried that the Bill gives the Secretary of State the power to change the heads of compensation and the benefits to be deducted accordingly. I understand that the Government need some reserve powers when benefits change and there is movement from, for example, family credit to a different kind of benefit, from invalidity to incapacity benefit or from income support to JSA, and so on.
We are not just worried about renaming when there are genuinely new benefits on the schedule of benefits that the DSS has in its repertoire. We are concerned with something rather different; namely, that the Bill gives the Secretary of State the power to change the heads of compensation and the benefits to be deducted accordingly. We fear that it is in the Government's interest to increase the heads and therefore to increase benefit clawback. We are worried that it might be abused.
As I said, it is obviously sensible to have some flexibility. Another government might want to introduce, for example, a partial disability benefit and would need to be able to amend the schedule. So that the schedule is not amended malevolently in order to increase recoupment and clawback, we again urge that
Earl Russell: The noble Baroness made an important point in relation to altering the heads of compensation, and I am grateful to her for bringing it to our attention. I am sure that the noble Baroness remembers, as I do, the regulations we had in the last Session on benefit for single parents. They allowed the Minister to vary the heads of premium for single parents without any further recourse to this Chamber, save through the uprating instrument which, as we both reminded the Minister, is practically impossible to oppose.
The Minister assured us, as I am sure he remembers well, that the Government had no present intention of abolishing the separate premium for single parents. Those words, carefully construed, I accept were perfectly true. But we now know that that is not a complete enumeration of the story. We now know what has been done with those words, as indeed I felt might be the case, which was the reason I divided the Chamber at that time.
Do we here have another blanket power given to the Secretary of State whereby he could, if he were strapped for cash--as Secretaries of State are from day to day--vary one of the basic principles of the whole Bill? That would cause many of us a great deal of concern. This also relates to the long-standing difficulties that exist at the moment between the Government and the courts.
I have drawn attention before to the exceptionally permissive style of drafting which is creeping into legislation. Basically, under the principle of the Cambises clause, the Secretary of State may do whatever he likes. This is an example of a Cambises clause. The Secretary of State may do a great many things under it and he cannot be directly challenged under the words of the statute. But that means that the only way a power exercised under a statute drafted so loosely can be challenged is through judicial review.
I have heard Ministers in this Chamber complaining about judicial review. I wonder whether this is a case of John Stuart Mill's remark about the inability of the analytical mind to recognise its own handiwork. If legislation is this loosely drafted, how else can it be challenged?
Lord Mackay of Ardbrecknish: The point of Clause 23 is that it allows the Government and Parliament on some future occasion to make amendments specifically to Schedule 2 of the Bill. Indeed, when we discussed at an earlier stage an amendment from the noble Baroness regarding the second head under compensation, I pointed out that if any problems arose along the lines she mentioned and these heads of compensation were found, in the light of experience, to need some change, then the clause we are discussing gives us the ability to make that change.
In the memorandum we sent to the Delegated Powers Scrutiny Committee we clearly pointed out and accepted that this was a Henry VIII clause, providing as it does
This regulation power will be used to deal with that eventuality. In that way it should be possible to avoid the difficulties which arose under the post-1948 scheme. That scheme was an inflexible one under which changes to benefits needed to be provided for by amendment to primary legislation. The need for such amendments was sometimes missed and unequal treatment of claims resulted. It is true that whatever happens in the future everyone knows that it is unlikely that the benefits on column two will remain exactly as named. There may be changes to those benefits, there may be additional benefits or variations of one kind or another. It seems to me eminently sensible that we have the power by secondary legislation to amend that column.
On column one I go back to the point I made earlier, where, by the light of experience, if it is discovered that there are real problems with the heads of compensation, again it seems sensible that we should be able, by secondary legislation, to change the composition of the paragraphs on the head of compensation column.
I fully accept that these are Henry VIII clauses, so we have made them subject to an affirmative order of the House, and I can assure the Committee that, as I have already done, I can easily confirm that it would be our intention to consult interested parties, where appropriate, in the event of any possible change needing to be made. Indeed, on the first set of regulations under this Bill we will be consulting pretty widely.
I hope I have explained why we need the power. It is quite narrow. There is a very good case for it. I fully appreciate that it is a Henry VIII power. I have given my assurance that we will be consulting on any changes we propose to make in the future on these matters. At the end of the day the House has the stronger secondary legislation of an affirmative order to discuss, to deal with and indeed, as the other place certainly does, to divide on these matters.
I hope that that explanation and assurance will allay the fears of both the noble Baroness, when it comes to consultation, and the noble Earl, when it comes to the Henry VIII matter.
Earl Russell: I am grateful to the Minister for what he has said about the power to divide on these matters. If points of this nature are to be dealt with by secondary legislation then that power is going to be necessary. When the Minister refers to it being found by experience, can he tell us whose experience?
Lord Mackay of Ardbrecknish: If it is the second column, then a government in the future will have changed the benefit, and it will be a fairly straightforward matter. They will want to change either the name of the benefit or add a benefit to column two.
As far as the experience is concerned, that will be what the consultation will be about. As the genesis of this Bill has been the Select Committee in another place, it might well be, if problems were to arise, that that Select Committee or a Select Committee of your Lordships' House might look at it, or indeed that people might come to government and say: "It isn't working in the way that was intended and there are problems". Maybe even the courts might say that they think that the Government ought to have a look at this. There are number of places where, so to speak, we might find a trigger mechanism for beginning the thought process that might lead to this. Ultimately, we are very clear and I hope that I have made it absolutely clear that we would consult widely if we were to make any change.
Page 10, line 42, leave out ("sent to him in accordance with regulations").
Page 11, line 5, leave out ("4(2)") and insert ("4").
Page 12, line 10, at end insert--
("( ) Regulations under this section shall be made only after consultation by the Secretary of State with interested persons, including persons who appear to him to be representative of employers, employees, disabled people, consumers, the insurance industry, lawyers and other persons providing advice services.").
9.30 p.m.
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